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Dorsey & Whitney LLP v. United States Postal Service

United States District Court, D. Minnesota

September 3, 2019

Dorsey & Whitney LLP, Plaintiff,
v.
United States Postal Service, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          Wilhelmina M. Wright United States District Judge.

         This matter is before the Court on Defendant's objections to the May 9, 2019 Report and Recommendation (R&R) issued by United States Magistrate Judge Becky R. Thorson on cross-motions for summary judgment. (Dkt. 47.) For the reasons addressed below, the Court overrules Defendant's objections, adopts the R&R, grants Plaintiff's motion for summary judgment, and denies Defendant's motion for summary judgment.

         BACKGROUND

         Plaintiff Dorsey & Whitney LLP (Dorsey) submitted a Freedom of Information Act request to Defendant United States Postal Service (USPS) on April 16, 2018, seeking information about Negotiated Service Agreements (NSAs) between USPS and private parties for lower rates or more favorable terms. Specifically, Dorsey sought information relating to NSAs between USPS and three entities: Fujian Zongteng Network Technology Co., Limited; Enumber, Inc.; and U.S. Elogistics Service Corporation.

         USPS submitted a Glomar response, a refusal to disclose or deny even the existence of any responsive documents.[1] Dorsey filed an administrative appeal, which USPS denied. Dorsey subsequently filed this lawsuit, claiming that USPS's Glomar response violates the Freedom of Information Act (FOIA).

         Dorsey and USPS filed cross-motions for summary judgment, which this Court referred to the magistrate judge, pursuant to Title 28, United States Code, Section 636(b)(1). In the R&R that followed, the magistrate judge recommends granting Dorsey's motion for summary judgment and denying USPS's motion for summary judgment. USPS filed timely objections to the R&R.

         ANALYSIS

         In its Glomar response to Dorsey's FOIA request for information regarding NSAs between USPS and three companies, USPS asserts that the information Dorsey seeks is protected from disclosure. In their pending cross-motions for summary judgment, the parties dispute whether USPS's Glomar response violates FOIA. Summary judgment is properly granted when, viewing the evidence in the light most favorable to the nonmoving party, the Court determines that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Mo. Coal. for Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d 1204, 1209 (8th Cir. 2008).

         FOIA promotes public access to government documents by providing “a judicially enforceable public right to secure [official] information from possibly unwilling official hands.” Miller v. U.S. Dep't of Agric., 13 F.3d 260, 262 (8th Cir. 1993) (internal quotation marks omitted). There are nine exemptions to FOIA's default rule of public access. 5 U.S.C. § 552(b). Each exemption “must be narrowly construed.” Miller, 13 F.3d at 262 (internal quotation marks omitted). A government agency need not disclose requested documents that fall within an exception. Instead, the agency may acknowledge the existence of responsive information and “provide specific, non-conclusory justifications for withholding that information under one of FOIA's exemptions.” W.Values Project v. U.S. Dep't of Justice, 317 F.Supp.3d 427, 433 (D.D.C. 2018) (internal quotation marks omitted). When an agency's decision to withhold requested information is challenged in court, the agency bears the burden of demonstrating that an exemption to FOIA applies. 5 U.S.C. § 552(a)(4)(B); accord Miller, 13 F.3d at 262-63.

         Exemption 3 to FOIA states that an agency need not disclose information that is “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). As relevant here, a statutory “good business” exception provides that USPS is not required to disclose “information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed.” 39 U.S.C. § 410(c)(2). Multiple courts have recognized that the good business exception is an applicable statute under Exemption 3 to FOIA. See, e.g., Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 596-97 (4th Cir. 2004) (holding that information was exempt from disclosure under the good business exception, as incorporated by Exemption 3); cf. Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1127 (9th Cir. 2007) (assuming without deciding that the statutory good business exception falls within Exemption 3).

         Under certain circumstances, even the mere acknowledgment that responsive information exists may be protected by a FOIA exemption. W.Values Project, 317 F.Supp.3d at 433. When disclosing the existence of requested information would cause harm to an agency, the agency may issue a Glomar response and decline to disclose the existence or nonexistence of responsive records. People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, Dep't of Health & Human Servs., 745 F.3d 535, 540 (D.C. Cir. 2014).

         USPS maintains that the information sought by Dorsey falls under the good business exception, as incorporated by Exemption 3 to FOIA. USPS argues its Glomar response is justified because acknowledging even the existence of NSAs is protected information. Dorsey disagrees, contending that FOIA requires USPS to disclose at least the existence of NSAs. Concluding that USPS's Glomar response is not justified, the R&R recommends granting Dorsey's motion for summary judgment and denying USPS's motion for summary judgment. USPS objects to the R&R, challenging the standard of review, the “actual harm” analysis, and the good business exception analysis applied in the R&R.

         When a party files and serves specific objections to a magistrate judge's proposed findings and recommendations, the district court reviews de novo those portions of the R&R to which an objection is made. 28 U.S.C. § 636(b)(1). The Court conducts the following de novo review of each portion of the R&R to which USPS objects.

         I. Standard of Review of USPS's Decision to ...


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